Judgement Appeal from a decree of the above Court (May 16, 1899) dismissing the appellants suit with costs on the ground that it was premature. The suit was brought under a deed of mortgage, the material clauses of which are set out in their Lordships judgment. The due date of the mortgage was October 22, 1899; the date of suit was January 13, 1899. The appellant contended that under clause 4 there had been default in payment of interest which entitled him to sue; the respondent contended that the provision in clause 4 was on its true construction a penalty from which he was entitled to relief. The Recorder ruled in accordance with the respondents contention. He said "It is true that clause 4 contemplates default by the mortgagor in payment of interest due under the deed before October 22, 1899, but as there is no covenant or stipulation by him for payment of mesne interest, I think he is entitled to contend and to contend successfully that the suit is premature. Great reliance has been placed by plaintiffs Counsel on Prosad Dass Dutt v. Ramdhone Mullick (( 1866) 1 Indian Jurist, 255.), but it is clear from the opening words of the judgment of Peacock C.J. that it 3 Law. Rep. 27 Ind. App. 98 ( 1899- 1900) Yeo Htean Sew V. Abu Zaffer Koreeshee 14 can be plainly distinguished from this case in that the deed under consideration contained a covenant that the mortgagor would on September 4, 1866, pay or cause to be paid to 1 the mortgagee, his executors, administrators, representatives, and assigns, the sum of Rs. 23,000, and would also in the meantime pay interest for the same, so that, as the learned Chief Justice pointed out, it was clear that interest was to be paid between the date of the deed and the time fixed for payment of the principal. In the deed before me there is no such stipulation, and it would only be by reading a clause into the deed that is absent that this case could be rendered identical with Prosad Dass Dutt v. Ramdhone Mullick (( 1866) 1 Indian Jurist, 255.), and the plaintiff be entitled to a decree." Fox, for the appellant, contended that the Recorder had misconstrued the deed of mortgage. On its true construction interest was payable month by month from the date thereof. On its true construction interest was payable month by month from the date thereof. Any other construction would render clauses 4 and 9 insensible and of no effect. These latter contemplate interest being due before October 22, 1899, and also that default could be made before that date, which clearly pointed to the intention of the parties that interest should become due month by month from the execution of the deed. Moreover, the respondent by his pleadings and conduct shewed that he so understood it. The respondent did not appear. The judgment of their Lordships was delivered by SIR RICHARD COUCH. By a mortgage deed dated October 22, 1898, the respondent, in consideration of Rs. 75,000, granted certain lands in Rangoon to the appellant subject to a proviso for redemption by payment on October 22, 1899, of Rs. 75,000, with interest after the rate of Rs. 10 per cent, per annum computed from the date of the deed and payable as thereinafter provided. The mortgagor covenanted with the mortgagee as follows— " 3. That the mortgagor will, on the 22nd day of October, 1899, pay to the mortgagee the sum of Rs. 75,000, and will also pay interest for the same after the rate of Rs. 10 per cent, per annum computed from the date of these presents. And if the said sum of Rs. 75,000 shall not be paid on the said 22nd day of October, 1899, then the mortgagor will pay to the mortgagee interest thereon after the rate aforesaid until the same shall be fully paid and satisfied, and will pay all such interest month by month on the 22nd day of each month succeeding that for which it shall become due. " 4. That if before the said 22nd day of October, 1899, the mortgagor shall make default in payment of the interest due hereunder for one calendar month after becoming due, then in that case the principal sum of Rs. 75,000 and interest shall thereupon become due and payable." On January 13, 1899, the mortgagee brought a suit against the mortgagor, alleging in his plaint that the mortgagor had only paid Rs. 200 for over two months as interest, and thereby failed to comply with the requirement of clause 4 of the mortgage deed, and that the sum of Rs. 75,000 and interest shall thereupon become due and payable." On January 13, 1899, the mortgagee brought a suit against the mortgagor, alleging in his plaint that the mortgagor had only paid Rs. 200 for over two months as interest, and thereby failed to comply with the requirement of clause 4 of the mortgage deed, and that the sum of Rs. 76,508 was due for principal and interest on the mortgage, and praying for an order to the defendant to pay that sum on a day to be named by the Court, and in default that the mortgaged premises might be sold and the proceeds applied in payment. The defendant by his written statement admitted the allegations in the plaint, and submitted that the provision in clause 4 was a penalty which the plaintiff was not entitled to enforce and that the suit was premature. The suit was tried by the officiating ERecorder of Rangoon, who on May 16, 1899, dismissed it. He held that the provision in clause 4 did not create a penalty—in which their Lordships agree with him—but as there was no covenantor stipulation for payment of "mesne interest " by the 3 Law. Rep. 27 Ind. App. 98 ( 1899- 1900) Yeo Htean Sew V. Abu Zaffer Koreeshee 15 mortgagor the suit was premature. The mortgagee has appealed, and the question to be determined is whether the mortgage deed contains such a covenant. In clause 3 the mortgagor covenants that he will, on October 22, 1899, pay the principal sum with interest computed from the date of the deed, and if the principal shall not be paid on October 22, 1899, that he will pay interest thereon after the same rate until the principal shall be fully paid. Then follow the words, and " will pay all such interest month by month on the 22nd day of each month succeeding that for which it shall become due." According to strictly grammatical construction, " such " would refer only to the interest payable after October 22, 1899, but it is capable of meaning the interest for the previous year covenanted in the first part of the clause to be paid, or it may be considered to mean interest at the rate fixed. If it does not mean the interest in the first part of the clause, no part of the first years interest would be payable until the end of that year, although after that time the interest is to be paid month by month. It is not reasonable to suppose that the mortgagee would agree to this. Then the introduction of the word " all" is not without significance. If the concluding words of the clause were meant to apply only to the part which immediately precedes them, " all " is unnecessary. Combined with " such " it helps to shew what is meant, and that the clause should be read as one sentence and not as if the first part is separate from what follows it. Clauses 4 and 9 of the deed support this con struction. Clause 4 assumes that there is an obligation to pay interest before October 22, 1899. If there is not, there cannot be default before that day in payment of the interest, and the clause can have no operation. Clause 9, which provides that if at any time either before or after October 22, 1899, the interest due under the mortgage is in arrear to the extent of Rs. 500 and unpaid for three calendar months after becoming due it shall be lawful for the mortgagee to sell the premises, also assumes that there is a covenant to pay interest at some time during the first year, otherwise the interest could not be in arrear before October 22, 1899. The construction which their Lordships put upon " all such interest" makes the different clauses in the deed consistent, and they are of opinion that the suit ought not to have been dismissed. They will therefore humbly advise Her Majesty to reverse the decree appealed against and to order that upon the defendant paying to the plaintiff within six months from the date of Her Majestys order the sum of Rs. 75,000, the principal, and Rs. 1508, the interest due on the mortgage mentioned in the plaint, together with the costs of this suit in the Recorders Court as taxed by the Court, and further interest on the said principal at the rate of Rs. 75,000, the principal, and Rs. 1508, the interest due on the mortgage mentioned in the plaint, together with the costs of this suit in the Recorders Court as taxed by the Court, and further interest on the said principal at the rate of Rs. 10 per cent, per annum from the date of institution of suit — namely, January 13, 1899 — till payment, the plaintiff do reconvey to the defendant the said mortgaged premises free and clear from all incumbrances made by him, and do deliver up to the defendant all deeds and writings in his custody or power relating thereto; but in default of the defendant paying to the plaintiff such principal, interest, costs, and further interest as aforesaid, by the time aforesaid, that the said mortgaged premises be sold, and the money to arise by such sale be paid into court, to the end that the same may be duly applied in payment of what shall be found due to the plaintiff for principal, interest, costs, and further interest as aforesaid, and the balance (if any) shall be paid to the defendant; but if the proceeds of sale shall not be sufficient for the payment in full of such principal, interest, costs, and further interest, then that the defendant do pay to the plaintiff the amount of such deficiency with interest thereon at the rate of 6 per cent, per annum until such payment. The respondent will pay the costs of this appeal.